Dinah, ClinkShrink, & Roy produce Shrink Rap: a blog by Psychiatrists for Psychiatrists, interested bystanders are also welcome. A place to talk; no one has to listen.

Friday, July 01, 2011

My Doctor, My Expert

In Dinah's post "The Chapter I Wish We Had Written" an anonymous commenter wrote about his problems finding an expert witness for his or her employment discrimination case (since I don't know if Anonymous is male or female I'm going to use a standard male pronoun in this post---apologies if I got this wrong). Anonymous asked his doctor to help with the case, but he refused. He explained to Anonymous that he would be a biased witness and Anonymous also understood that the doctor's involvement might affect the therapeutic relationship. Anonymous's doctor gave her a number of referrals to forensic psychiatrists, but since he was not working with an attorney no expert would take the case. Anonymous was understandably frustrated by this situation.

I wanted to write about this because this situation comes up fairly often and I get calls from friends, colleagues and former students asking how to handle it. I've already written about what to do when you get served with a subpoena in my post "When Lawyers Call."

First of all, I think Anonymous's doctor was particularly astute to recognize the dilemma that arises when trying to help patients in situations like this. I try to prepare psychiatry residents during their training to help them handle this problem, but in the days before forensic rotations were required in residency doctors didn't get that preparation. Anonymous's doctor is either young enough that he had forensic education during residency, or old enough that he got some real-life experience with it. Either way, he was right to recognize that he could be biased and that he was not in a position to offer a forensic opinion, and to make a referral to others who could.

In civil litigation expert testimony is usually needed to address the following questions:
-what is the plaintiff's diagnosis?
-what are the symptoms of that illness and how do they impair the plaintiff's life?
-what is this treatment for this condition?
-has the plaintiff improved as much as he will improve?
-what caused the plaintiff's condition?
-what are the plaintiff's permanent damages?

A treating clinician is usually called as a "fact" witness. A fact witness is someone who testifies about information they've directly seen or heard. Fact witnesses can't draw conclusions or offer opinions about their observations, and they can't be paid for their time testifying. Expert witnesses are allowed to draw conclusions or offer opinions about their observations.

Sometimes it gets tricky sorting out whether or not a treating clinician is being offered as a fact witness or as an expert witness. For example, a medical diagnosis could be considered a "fact" because it's a piece of information documented in a medical record. Testimony about a medical diagnosis could also be considered expert testimony, because the doctor is drawing a conclusion from his observations: ("I observed a sad expression and the patient reported persistent feelings of anhedonia and worthlessness, so I concluded the patient had clinical depression."). It's important to clarify up front whether the clinician is serving as a fact witness or as an expert witness.

Role clarification is also important because you also have to clarify who is paying you and for how much. Some unscrupulous lawyers may try to call a doctor as a fact witness, knowing fact witnesses can't get paid for their time, but then will try to squeeze an expert opinion out on the stand regarding causation and damages. Shame, shame, on these folks! If you are qualified as an expert on the stand, you are entitled to expert witness fees.

Regardless, generally accepted ethical guidelines state that it is a conflict of interest to serve as both a forensic expert and treating clinician. If you end up stuck in that position---say you can't get out of a subpoena and you are required to offer expert testimony about a patient's diagnosis and factual information about treatment---how do you avoid looking like a fool or hurting your patient?

First, admit what you haven't done as a "real" forensic expert: you haven't interviewed collateral informants, you don't have all the investigation reports or records, you don't know your patient's entire litigation or criminal history, or the extent of pre-existing injuries, etc etc. For all these reasons, you are unable to offer an ultimate opinion about causation or damages. No one can force you to form an opinion if you have none. In this situation, "I don't know" is the correct answer.

If you know you're going to have to testify, prepare your patient in advance for what you might have to say. Because you're given access to many personal areas of a patient's life, some irrelevant but damaging information could be brought out in court. No one should be surprised, particularly not in a negative way, about what is being said. A treating psychiatrist should also be prepared for what could be said about him in court: How many times did you take your board exams? And did you pass? How much money do you make from expert testimony? Did you consider other possible causes of your patient's problem? Why didn't you do (X, Y or Z)? A clinician could be left feeling like the shoddiest doctor on earth, and that isn't going to help the next time the patient comes into the office.

OK, I'll bite. I shouldn't do this but my curiosity just has gotten the better of me. Rob, if doctors don't testify about standard of care, who should? Should we leave judges or juries to decide on their own what proper medical care should consist of?

I won't address the sanity and dangerousness testimony issue since we've already rehashed that in detail.

OK, I misunderstood your reference. When you said "people in your practice" I read that as a prohibition against testifying on behalf (or against) other physicians. I will read more carefully next time.

Thank you, Clink. I am the Anonymous from Dinah's post on Bad Psychiatrists. Thank you for clearing up a few things. You guessed right about my shrink's ethics and that he was either very young or old enough to have been through it (I won't say which).

So, even if he is right in his approach, why couldn't he help me find someone? I know the lawyer usually hires somebody, but I don't have one. I have looked but everyone wants large retainers, etc. The kicker is that I AM A LAWYER MYSELF. I know how pursue the litigation, what I have to prove, etc. The lawsuit stems from me being fired solely on account of having a mental illness--I don't just need an expert to testify as to distress. I need the DSM-IV diagnosis explained to the jury. I'm really up a creek without a paddle.

Anon--you might not need an expert to testify as to DSM diagnosis and actual disability. You might be able to pursue an Americans with Disabilities Act claim under the prohibition against a person "perceived as having a disability."

Anon #1, the biggest problem may be that depending upon where you live there may just not be that many forensic psychiatrists (or any). In Maryland there are only about 50 board certified forensic psychiatrists (a relative abundance) but nationally maybe fewer than 2000. Some states only have two or three. You might want to do a search on the Board of Medical Specialties web site. The registration is free, and you can search by specialty and state:

To add to what Anon J.D. said, if the ADA was violated, the Feds will often pursue the case. Anon should file a complaint against the former employer with the eeoc. This should be done asap as there are filing deadlines. The complaint can be done online.

Several decades ago a patient came to me after a former mental health practitioner had asked her on several occasions if she knew of any women he could meet "who were as good looking as she was." She had become very distraught. Filed a lawsuit and put a complaint in to the professional board.

The patient, her husband, and her lawyer all wanted me to testify as to her current condition and the ethics involved. I didn't want to do it for the reasons noted in the posts above. I said that it would damage our working relationship. The husband said if I refused to testify then that would really hurt the relationship, and additionally I would be hurting her case.

Wrong, wrong, wrong. She should have had another lawyer, but I could have handled it better, too. I did not even fully realize the difference between a witness-to-fact and an expert witness.

I was sent a subpoena. The trial was a disaster - she lost - and I was amazed (you lawyers out there are likely shaking your heads in disbelief at my naivety) at how beautifully the doctor's counsel carved me up. A woman attorney, no less, defending this guy! And the patient ended up dropping out of treatment shortly thereafter. So she suffered further as a result of all this.

The licensing board ended up strongly sanctioning her former therapist. What he had done was totally unethical.

So what did I learn? Confer with colleagues. Get your own legal advice. Realize that whatever the medical arguments, the legal world is totally alien to you and you are a babe in the woods in it.

Okay. It is I--Once again the Anon Lawyer #1 who inspired Clink's post. I am an employment discrimination atty who was discriminated against. There is no coverage under the ADA period because fewer than 50 employees working for the employer. The case is well under way and in Court. I definitely need a psychiatrist to discuss on the stand how the illness looks and what the illness looks like when it is being treated with mood stabilizers and therapy. This is precisely why I am up a creek. I have talked to 5 psychiatrists, half of them certified as forensic psychiatrists, and no one will get involved without some magic third-party figure who can come in with a hat that says "Anon's Atty." But thanks for the support.

Clink, I live in a state with probably the most forensic psychiatrists, the most lawyers, and the most rapid Red Sox fans.

Jesse, the mind-boggling thing to remember whenever you're dealing with the law is that the law considers itself above science.

It's like tomatoes. In 1883, in the case of Nix v. Hedden, the United States Supreme Court declared that legally, tomatoes are vegetables-- and this has held up repeatedly. The supreme court even admitted at the time that they knew perfectly well that botanically, tomatoes are fruits. But that didn't stop them from declaring that since they are usually eaten as the main part of the meal rather than as dessert, their legal classification is as a vegetable. IOW "We know that tomatos aren't really vegetables, but we don't care because we're the supreme court and we can define anything we want however we want. So nyah nyah nyah!"

Or that "How the heck can any food NOT be organic?!" freakout anybody familiar with chemistry inevitably has when introduced to the concept of organic produce.

Knowledge of reality and knowledge of law are completely separate. Not necessarily mutually exclusive, but it is necessary to compartmentalize concepts. The law creates its own reality. There's a logic to it, but to see that you have to go back to the drawing board of basic logical concepts rather than relying on facts defined in other fields.